Saturday, February 27, 2010

Raised Senate Bill No. 120: Legislative Review of DEP Guidance Documents

Although in a short session, the legislature is giving us a number of proposals to consider. In the last post we looked at a bill addressing enhancements to the wetlands act. That bill, Raised Bill No. 205, proposed an agency's consideration of guidance documents, which we pondered in the last post. This past week public hearings were held on two bills affecting wetlands agencies, one explicitly addressing guidance documents. Thanks to the IT wizards at the legislature who have promptly uploaded written comments onto the General Assembly's website, we can follow the debate without dodging the wintry weather mix we endured this week.

The leit motif is: time is not on their side. Who "they" is depends on which bill you're looking at.

Time is not on their side, Part I --
The DEP Commissioner and environmental groups:
Raised Senate Bill No. 120: An Act Authorizing Review of the Department of Environmental Protection's Guidance Statements and Policies by the General Assembly's Regulation Review Committee

This bill authorizes the legislature's regulation review committee to review a specific DEP policy or guidance document to determine that such document constitutes a regulation. A regulation is defined in General Statutes § 4-166 as "each agency statement of general applicability, without regard to its designation, that implements, interprets, or prescribes law or policy . . ." The review is triggered by the submission of a petition signed by a minimum of twenty-five persons who claim that the document when applied to them constitutes a regulation. The committee's review may involve a public hearing. After the public hearing (or presumably any review which did not involve a public hearing) the committee shall inform the Commissioner of Environmental Protection of its determination. The committee may make "any recommendation . . . consistent with such determination."

The stated purpose of the bill (at the bottom of the bill) is to provide the regulated community with an opportunity to have DEP guidance statements and policies reviewed. That is true; it is a lopsided bill. It does not seek to empower the public, other governmental agencies or municipalities to have the same access to legislative review.

The bill's breadth far exceeds issues arising under the Inland Wetlands & Watercourses Act. Still, there are a number of significant guidance documents that are in common circulation in the inland wetlands regulated community. There are the DEP Model Municipal Inland Wetlands Regulations. They do work out well as a model. Each municipality decides whether to adopt them, in whole or part, as regulations. The DEP created a guidance document on upland review areas, namely: "Guidelines Upland Review Area Regulations, Connecticut's Inland Wetlands and Watercourses Act." The state Supreme Court referred to this document as an aid to municipalities when they are defining regulated areas and activities. See Queach Corp. v. Inland Wetlands Commission, 258 Conn. 178, 184 n.8 (2000).

How often have wetlands agencies held up the 2004 Connecticut Stormwater Quality Manual and the 2002 Connecticut Guidelines for Soil Erosion and Sediment Control as if they were adopted regulations? At dispute in Finley v. Inland Wetlands Commission, 289 Conn. 12 (2008), discussed earlier in this blog, was the wetlands permit issued by the Orange wetlands agency to Stew Leonard's. The permit's conditions (listed in footnote 5 on page 16) included: "[r]evised and updated erosion control plan that implements all [s]tate [r]egulations." What state regulations? There are no state regulations which establish the standards for municipal permit issuance. The majority opinion, at page 41, concluded that it was "implicit" in a condition requiring revisions to the erosion control plan to meet state regulations that the application did not comply with the state regulations.

The emperor's new clothes just seem to be taking on more and more fabric.

The Supreme Court never established what "state regulation" the application failed to comply with. The concurring opinion, at page 45, held that the application "either lacked an erosion and sedimentation control plan . . . or included one whose failure to comply with the relevant regulatory scheme could not be addressed by reasonably specific conditions of approval." The concurring opinion acknowledged, in footnote 3 on pages 45-46, that the 2002 Guidelines for Soil Erosion and Sediment Control were just guidelines and do not have the force of law. But back in the main text the opinion continued to hold, as did the majority opinion, that the application did not comply with the applicable regulatory scheme, without pointing out the specific state regulations.

The emperor's new clothes are made of ever-denser fabric.

Perhaps that is part of the problem. Whether intended or not, guidelines, especially in the absence of regulations, take on regulatory character.

The DEP Commissioner, Amey Marrella, submitted testimony that emphasized that the bill would lead to "lengthy and unnecessary delays and costs. . ." She refers to the value of guidance documents as complementing and not supplanting regulations. That may well be true, in areas where the guidance documents play a supporting role. In the inland wetlands scheme where no state regulations have been adopted, the guidance documents take on a leading role.

Environmental groups characterize the bill as requiring the DEP to do "more with less and less" and that DEP "has experienced extreme delays and difficulty completing the full rulemaking process." Some groups note the inherent tension in having both the legislature (through the regulation review committee) and the courts (through an action for declaratory judgment) determine whether a document constitutes a regulation.

In the most colorful language used in testimony, the Home Builders Association of Connecticut characterizes wetlands agencies' reliance on the 2004 Connecticut Stormwater Quality Manual as "biblical." Other proponents want their opportunity to be heard on a given topic. This assumes, however, that the regulation review committee will hold a public hearing on their claim or the DEP will decide, based on the recommendations of the committee, to adopt the document as a regulation. The Connecticut Petroleum Council wants the bill to go further by requiring a public hearing before any policy statement is adopted, including major DEP policies adopted by the Governor's Office.

A public hearing before the DEP endorses "No child left inside"?

The Home Builders and the Connecticut Business and Industry Association attached lengthy lists of documents designated guidance or policy which they believe constitute regulations.

One proponent and some opponents recognize the value of guidance documents as well as the need for adopting policy through regulations.

With Raised Senate Bill No. 120 the Commissioner and environmental groups raise the lack of time to adopt guidance documents as regulations. In the next post we'll examine the bill to expedite permitting procedures, where the regulated community claims the lack of time to obtain all necessary permits.

Friday, February 19, 2010

Proposed legislation: Enhancements to the Wetlands Act

This is the third legislative session that a bill has been proposed to "enhance" the Inland Wetlands & Watercourses Act. Raised Bill No. 205, An Act Concerning Enhancements to the Inland Wetlands and Watercourses Act, in this iteration, proposes to the amend the legislative finding in the opening section of the act and to articulate what kind of evidence shall be considered by wetlands agencies. The statement of purpose omits any reference to the change in declaration of policy and characterizes this bill as "augment[ing] the scope of evidence considered."

Here's what's being proposed to increase wetlands agencies consideration of evidence: "all evidence brought before such agency or its agent by any person or entity . . . including . . . scientific evidence, expert opinion, direct observations made regarding the proposed regulated activity, environmental reviews, policy letters or guidance documents . . ." Putting aside the policy letters and guidance documents (which is maybe what should happen with those items), haven't agencies been considering precisely that for decades? Nothing new about considering scientific evidence. Ditto for expert opinions and direct observations.

I don't know what is meant by "policy letter." Is that something that should be of uniform applicability but hasn't been adopted as a regulation that a process that would put everyone on notice that it is in effect? The Connecticut Supreme Court seems to have relied on the DEP guidance document on upland review areas when issuing its decision in Queach v. Inland Wetlands Commission, 258 Conn. 178 (2001). But does that mean that a DEP guidance document on a subject not particularly related to wetlands protection, say on PCBs (if one exists) should be considered without "connecting the dots" -- that is, without an explanation of how PCBs harm wetlands?

I wonder if this is an attempt to erode the Connecticut Supreme Court's pronouncements that there be actual adverse impact to the wetlands or watercourses in order for an agency denial to be legally sufficient. Or is this meant to blur the line between meetings, at which the public observes but does not participate, and public hearings where the public participates? If the statute is amended to read that the agency shall consider all evidence "brought before such agency or its agent" doesn't it still depend on whether the agency decided to hold a public hearing?

What is overlooked in the bill's statement of purpose is the change to the legislative finding. The act currently speaks of the need to adopt a process to keep the state from the "random" use of wetlands and watercourses. The wetlands act does that by "providing an orderly process to balance the need for economic growth . . . with the need to protect [the] environment." § 22a-36. This proposal adopts the preservation language already present in the tidal wetlands statute by adding to the end of the legislative finding the following text: "It is the public policy of the state to preserve and to prevent the despoliation and destruction of the inland wetlands and watercourses of the state." This change would not likely affect the month-to-month operations of wetlands agencies. The value would be when the courts interpret the law. In fact, as noted before, the Supreme Court has already relied on the finding in the tidal wetlands act when construing the inland wetlands act.

Time will tell whether this year's short session will adopt these enhancements.

Tuesday, February 16, 2010

Daylighting another enforcement case: Stamford v. Kovac

Thanks to Dave Emerson, staff to the Stamford wetlands agency (the "Environmental Protection Board"), there's another wetlands enforcement action to daylight. In mid-January I daylighted a wetlands enforcement case that has been more-or-less lost due to references to the tidal wetlands statute instead of the inland wetlands statute. This case, the Stamford Environmental Protection Board's battle since 1987 against Milivoje Kovac, Sylvester Beserminji and Lida Nosik to restore wetlands illegally filled, is neither obscure nor hard to find. It's just that it had become known early in the litigation for another important legal issue - with implications greater than just wetlands protection.

In Stamford v. Kovac, 228 Conn. 95 (1993), the Connecticut Supreme Court upheld the trial court's issuance of a mandatory temporary injunction, that is, an order of the court mandating that the defendants undertake certain actions prior to a full-blown trial on the merits at the final stages of the litigation. Typically, temporary injunctions are prohibitory, forbidding specified acts, such as filling of wetlands without a permit. The purpose of a temporary injunction is to preserve the status quo while the case is pending. The Court concluded that sometimes "it happens that the status quo is a condition not of rest, but of action, and the condition of rest is exactly what will inflict irreparable injury . . ." Stamford v. Kovac, 228 Conn. 95, 101 (1993). The Supreme Court reversed the Appellate Court's ruling and upheld the trial court's temporary injunction requiring the removal of fill in the wetlands, the stabilizing of the area with the planting of native materials, and regrading the land to original contours.

After some more years of legal wrangling, the trial court turned the temporary injunction into a permanent one. (The trial court's decision is not an officially reported case, rendering the decision beyond the reach of Google Scholar and other no-cost legal search options.) When the temporary injunction was originally issued, it was accompanied by a penalty of $250 for each day the defendants did not comply with the court order. The penalty was stayed while the authority of the trial court to issue a mandatory temporary injunction was on appeal. After the Supreme Court upheld the trial court's order in December 1993, the trial court in 1995 conducted a trial. The trial court lifted the stay on the penalty and imposed the daily penalty retroactive to the date of the Supreme Court decison. From December 1993 to April 18, 1995 the penalty amounted to $120,500. Add to that the attorney's fees awarded by the court in excess of $31,000.

The case also had resulted in an earlier Appellate Court decision of significance. The trial court, accepting the recommendations of the trial attorney referee (before whom the case was tried) awarded the recovery of attorney's fees for the salaried city attorney and fees for the overhead and time spent by the two municipal wetlands agency employees. For the municipal staff, an hourly rate for each employee was used plus the hourly cost of benefits to the employee multiplied by the number of hours. The Appellate Court dismissed the defendants' appeal, holding that the defendants should not be rewarded for pursuing litigation when salaried employees are involved.

Because no appeal was taken from the trial decision reinstituting the daily penalty, the case might have been known just for its value on temporary injunctions and recovering fees associated with enforcement -- not insignificant, but also not the whole story.

Let's continue daylighting enforcement actions that may otherwise be lost.

Tuesday, February 9, 2010

Is the meaning of "clear cutting" clearcut?

---adj. 1. formed with or having clearly defined outlines. 2. unambiguously clear; completely evident; definite: a clear-cut case of treason. 3. of or pertaining to a section of forest where all trees have been cut down (as for harvesting)."
Random House Webster's College Dictionary
The lay meaning of clear cutting references a forest and the removal of a portion of it. The definition of clear cutting as commonly relied on by wetlands agencies is devoid of the context of a forest. To begin, the Inland Wetlands & Watercourses Act mentions clear cutting in a round-about way. The sole use of the term "clear cutting" is in the second sentence of the agricultural exemption section, which designates that clear cutting is not exempt except when conducted to expand agricultural cropland. General Statutes § 22a-40(a)(1). The case that put clear cutting on the map was Timothy Mellon's removal of all vegetation, trees, shrubs and brush in a 2.5 acre area of floodplain along the Connecticut River in East Haddam. And, by the way, it wasn't on his land, but rather on land owned by the East Haddam Land Trust and The Nature Conservancy. Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, cert. denied sub nom. Goodspeed Airport, LLC v. Ventres, 547 U.S. 1111 (2006 ).

Mellon and his LLC argued that the removal of vegetation was not a regulated activity under the wetlands act. "Regulated activity" is defined in § 22a-38(13) as "any operation within or use of a wetland or watercourse involving removal or deposition of material, or any obstruction, construction, alteration or pollution, of such wetlands or watercourses . . ." The Supreme Court noted that Mellon and his LLC cut the living vegetation growing within the wetlands and left the remains on the ground and concluded unambiguously: "If the removal of all vegetation growing in a wetlands area was not intended to be a regulated activity, we would be hard pressed to imagine what type of material the legislature had in mind in enacting § 22a-38 (13)." Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 138, cert. denied sub nom. Goodspeed Airport, LLC v. Ventres, 547 U.S. 1111 (2006 ).

Clearly, clear cutting of 2.5 acres is a regulated activity. How about the removal of four trees in an acre, when each tree is distant from the other? It would not fall within the lay definition. The 2006 version of the DEP Model Regulations defines "clear-cutting" in § 2.1 as "the harvest of timber in a fashion which removes all trees down to a two inch diameter at breast height." Under the DEP definition, adopted by many towns in their regulations, the removal of four trees on one acre, if the total number of trees is four, is clear cutting. The definition appears to be lacking an important sense of density and geographic area. If you define a portion of forest as small enough, you can clear cut a section by removing four trees, regardless of the number of trees in the entire forest. If there are only 4 trees on a one-acre lot, the removal of those four trees is the removal of "all trees."

When presenting a legal workshop with Assistant Attorney General David Wrinn and Attorney Mark Branse at CACIWC's 2009 annual meeting, I threw out this notion about "clear cutting." What we heard back from towns was astonishing. There are wetlands agencies that require a permit for the removal of a tree. A representative of another agency suggested that shrubs are trees, so that the removal of a shrub is considered within the meaning of clear cutting. We attorneys were taken aback by the interest in hyper-regulation by some wetlands agencies. If the removal of such four trees is on residential property, there is an argument that the removal is exempt. Pursuant to the "uses incidental to the enjoyment and maintenance of residential property" exception in § 22a-40(a)(4) the removal or deposition of material which is not "significant " is exempt.

Permit requirement for removal of a single tree or two or three? I look forward to another column on the topic -- after you have responded.

* * *

Follow-up on Google Search: One reader appreciated the hyperlinks in a case to easily read cases the court is relying on. I must confess it fell short today when I went to the Ventres case (linked earlier in this post). The case is unpaginated and the citation lacks a reference to the certification denied by the United State Supreme Court.

Sunday, February 7, 2010

Governor Rell's Executive Order No. 39 to review state environmental permitting

On February 3, 2010, the same day she delivered her State of the State address, Governor Rell issued Executive Order #39, which received little press. With the issuance of this executive order, effective immediately, the Governor has established a Permitting Task Force to examine state agency permitting processes that impact the environment, public health and public safety. Why? The state permitting processes "often have proven to be cumbersome and time-consuming." The task force is charged with developing recommendations for "simplifying, streamlining and if appropriate, repealing such processes." Tall order in a timeframe of 45 days. Hope springs eternal. (The deadline is March 20th.) The appointees to the task force will be consumers, representatives of business, industry, the construction industry, labor and municipalities. Noticeably absent are those skilled in issues of the environment, public health and public safety -- the subject matter of the permits.

Examined from a state wetlands law perspective, this order brings under the microscope the DEP's processing of wetlands permits for regulated activities proposed to be undertaken by state agencies (and infrequently for municipal wetlands applications when the agencies have failed to complete their municipal duties within the statutory timeframes.) The DEP has no timeframe established by statute to complete its duties, while the municipal agencies live within very short turn-around times for commencing public hearing.

Lest you think that I am advocating strict deadlines for DEP, actually I am questioning the wisdom of the statutory deadlines imposed on municipal agencies. Many agencies hire environmental consultants to evaluate the applications -- so that there is substantial evidence to support their decisions. Sixty-five days from date of receipt to act on an application (when there is no public hearing and no extension is granted) or sixty-five days to commence a public hearing, thirty-five days to complete it, thirty-five days to act on the application (with a possible total of sixty-five days of extension.)

Although all state agencies are mandated to cooperate, the task force won't be taking too much time away from processing applications. The task force has forty-five days to act (no extensions even if it holds public hearings) and it's already day four.

Wednesday, February 3, 2010

Electronic Resources #4: Google Scholar

We no longer have to rely on the advance sheets on the Connecticut judicial website to access officially reported Connecticut court cases online at no cost. Thanks to Google Scholar ( you can access court federal and state court cases wherever you have internet access. Chris Roy, one of our courthouse law librarians, prepared a memo in December 2009 on Google Scholar which Attorney Matt Berger thankfully forwarded to me. This is the "point and shoot" camera that anyone can use to find an officially reported case.

Matt Berger contacted me after my previous post which highlighted only the advance release version of officially reported Connecticut cases from 2000 forward, wondering why I didn't mention Google Scholar. I had intended to include Google Scholar in the last post. As I was writing Friday's entry in the late afternoon/early evening, i.e., too late to call on a resourceful courthouse law librarian, I started to cover Google Scholar, when I discovered that Chris Roy's memo was no longer anywhere to be found on the internet. His review of the Google Scholar was a gem that needed to be seen. So I called him on Monday asking him about his review's whereabouts. He recently became aware that just last week his memo was "behind a wall," where only law librarians with a password can access it. At my request he kindly posted his report on Google Scholar on his website,, another wealth of resources on doing legal research. His report, "Google Scholar Opinions: An Initial Look," can be accessed by clicking here.

Have you thanked a courthouse law librarian today?

I am going to assume that you have read Chris Roy's article before reading this post any further. He writes cautiously that Google Scholar won't be replacing LexisNexis, Westlaw, etc. which have highly refined search functions which lawyers need. I want to compare Google Scholar, not to those legal search engines, but to the Connecticut judicial department's advance release of officially reported cases. Folks who currently use the judicial branch's cases may find Google Scholar, except for cases released in the past few weeks, a superior method of finding cases. Because:1) cases from 1950-1999 are available, 2) there are page numbers, 3) one can search for a case caption without going through a year-by-year search, and 4) one can search by a phrase found within a case.

Now I want to play around with how easy it is to find cases. Are you wondering whether it's legal to offer (if you're the applicant) or to accept (if you're the wetlands agency) a bribe, I mean a financial enhancement in the form of cash and in-kind contributions to bolster a possibly inadequate application for a regulated activity? Do you have a dim memory of some case of that sort being discussed? I still remember the name of the case. But I'm anticipating there will come a time when the name escapes me. I was wondering if Google Scholar could help me out. Yes it can.

Once you've gone to Google Scholar and changed the button on "Articles" to "Legal opinions and journals," you click on "Advanced Scholar Search." On the first line where it prompts you for "Find articles with all of the words" I put in "cash contribution wetlands". I put in the word "wetlands," because I did not want to read through all of the dreary years of court cases involving political corruption. (It was dreary enough to live through them.) I then went to the bottom of the page and limited the search to cases in Connecticut. After hitting the "Search Scholar" button, I had the case name, citation and link to the case in a nanosecond, or more precisely, in 0.05 seconds. A few minutes later I was reading how the Supreme Court in Branhaven Plaza, LLC v. Inland Wetlands Commission, 251 Conn. 269, 284 (1999) nixed the notion that the exchange of money for a wetlands permit was proper: "The notion that money and its in-kind equivalent could present the sole obstacle to obtaining a permit would severely undermine the rationale for enacting the legislation and the ultimate purpose of protecting wetlands and watercourses." This is an amazing tool.

One aspect that I don't like is the lack of perceptible order to results of a search, when there are many results. For instance, I entered the phrase "feasible and prudent alternative" (again limiting it to Connecticut cases). I got 60 results in 0.06 seconds. Quite impressive. The first case was from 1993, followed in order by cases from 1981, 1995, 1999, 1993, 1989, 1990, 1992, 2003, 1992 and so on. Yikes! Just like walking into my teenage daughter's room to look for the car keys. When looking for one case, the search functions quite smoothly. If you know the case citation, enter it with quotation marks around it. If you know any word in the case name enter it as follows: intitle:branhaven.

Google Scholar -- a fine tool to be used, highlighted by Chris Roy, one of our resourceful courthouse law librarians.